On June
24, 2016, Defendant Ervin Beronco Smith filed a Motion to
Suppress [126]. Defendant Lucio Antonio Maldonado-Farias
filed a Notice of Joinder/Concurrence in the Motion to
Suppress on June 27, 2016. [127]. On November 9, 2016 the
Court held a hearing on Defendant's Motion to Suppress
Evidence and denied the Motion from the bench. Defendant
Smith filed a Motion for Reconsideration of the denial of the
Motion to Suppress on November 29, 2016. [153]. Defendant
Maldonado-Farias filed a Notice of Joinder/Concurrence in
this Motion on December 1, 2016 [152]. For the reasons stated
below, the Motion for Reconsideration is DENIED.

Standard
of Review

Local
Rule 7.1(h)(3) provides that:

Generally, and without restricting the court's
discretion, the court will not grant motions for rehearing or
reconsideration that merely present the same issues ruled
upon by the court, either expressly or by reasonable
implication. The movant must not only demonstrate a palpable
defect by which the court and the parties and other persons
entitled to be heard on the motion have been misled but also
show that correcting the defect will result in a different
disposition of the case.

See Hansmann v. Fid. Invs. Institutional Servs. Co.,
326 F.3d 760, 767 (6th Cir. 2003) (A motion for
reconsideration is granted only “if the movant
demonstrates that the district court and the parties have
been misled by a palpable defect, and correcting the defect
will result in a different disposition of the case”).
“A palpable defect is a defect which is obvious, clear,
unmistakable, manifest or plain.” Fleck v. Titan
Tire Corp., 177 F.Supp.2d 605, 624 (E.D. Mich. 2001)
(internal citations and quotations omitted). “The
decision whether to grant reconsideration lies largely within
the discretion of the court.” Yuba Natural Res.,
Inc. v. United States, 904 F.2d 1577, 1583 (Fed. Cir.
1990).

Analysis

Defendant
filed a Motion to Suppress Evidence [126] on June 24, 2016,
arguing that the affidavit for the wiretap did not meet the
necessity requirement because the objectives of the
investigation, viz, identifying the drug supplier
and those involved in the drug trafficking business, the
sources of supply for the drugs, and the scope of the
Detroit, Michigan-based organization's operations and
method of acquisition and distribution of heroin, could have
been met without a wiretap. On November 9, 2016, the Court
denied Defendant's Motion to Suppress Evidence.

The
Motion for Reconsideration rests on a proposition that the
Court was misled regarding the necessity of the wiretap
affidavit. Specifically, that it was misled by the omission
of material evidence in the form of information about the
existence of a warrant for the capture of “radio
signals” that was never used prior to obtaining the
wiretap.

First,
Defendants argue that the Court was misled when the
Government asserted at the hearing that all the “phone
location technology” information was disclosed within
the affidavit, since it failed to mention the May 28, 2015
order authorizing the capture of “radio signals,
” only referring to the availability of “GPS
Ping” technology in the affidavit. Defendants suggest
that use of radio signals is a much more precise and accurate
technology than GPS ping data to utilize geolocation
information. As such, the wiretap was unnecessary because the
objectives of the investigation could have been met without a
wiretap given that the Government could have used radio
signals to achieve the goals of the investigation.

This
mirrors Defendants' argument in the Motion and at the
hearing that the Government possessed all the tools to meet
the objective of the wiretap affidavit. The Government
pointed out at the hearing that the affidavit detailed that
location technology was available and had been used, but that
it was not sufficient to meet the objectives of the
investigation. [126-2 at Pg ID 557]. The Court agreed with
the Government because location data, no matter how accurate,
cannot reveal the contents of conversations, which were
necessary to meet the objectives of the investigation.
Nothing Defendant has raised in this Motion regarding the
lack of a specific mention of an order authorizing radio
signal capture overrules the Court's previous decision
regarding necessity, and therefore it is not a ground for
granting reconsideration.

Second,
Defendants argue that they believe the radio signal capturing
device, authorized by Court order prior to the wiretap, was
sufficient to seize text and/or telephone conversations in
addition to raw radio signals through the use of
“stingrays.” See Kim Zetter, Turns
Out Police Stingray Spy Tools Can Indeed Record Calls,
WIRED (Oct. 28, 2015), https://www.wired.com/2015/10/
stingray-government-spy-tools-can-record-calls-new-documents-confirm/;
Renee Lewis, Stingray cell surveillance can record
conversations, bug phones, ALJAZEERA (Oct. 29, 2015),
http://america.aljazeera.com/articles/2015/10/
29/stingray-can-spy-oncalls-and-texts-bug-phones.html.
However, the articles Defendant relies on do not establish
that, even if the Government's order for the capture of
radio signals permitted the use of “stingrays, ”
a wiretap order was not required to obtain the contents of
the phone conversations and texts.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;As the
articles presented by Defendant point out, while it is
possible for stingrays to be used to acquire the contents of
conversations, the Department of Justice&#39;s guidelines
state that stingray devices &ldquo;must be configured to
disable the interception function, unless interceptions have
been authorized by a Title III order.&rdquo; Kim Zetter,
Turns Out Police Stingray Spy Tools Can Indeed Record
Calls; see also, Renee Lewis, Stingray cell
surveillance can record conversations, bug phones
(“A federal wiretapping law allows law enforcement to
obtain the contents of calls or texts with a court order to
intercept those communications, the DOJ guidelines
said.”). In fact, the warrant application for the radio
signals specifically states that “[t]his warrant does
not authorize the interception of any telephone calls, text
messages, or internet data.” [126-8 at Pg ID 657].
Therefore, even if the radio signal ...

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